Did President Bush commit an impeachable offense by authorizing the NSA to spy on American citizens? That’s what former White House counsel John Dean has told California Senator Barbara Boxer (hat tip: Armchair Generalist).
Article II, Section 4 of the Constitution says this about the removal of the president from office:
Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
There’s no real definition of what constitutes high crimes and misdemeanors. In the parlance of the times high crimes were crimes against the State itself, i.e. abuse of power.
The reality is that impeachable offenses are defined circularly: they are precisely what the House of Representatives finds that they are. Under current circumstances it seems pretty unlikely that the House will find what the President has done (whatever that is) will rise to the level of an impeachable offense.
Perhaps the better question is should the authorization be an impeachable offense? If what the President did was a violation of the law and the law was constitutional and the President knew what he did was a violation of a constitutional law, then it probably should be but that’s an awful lot of if’s and those if’s are, apparently, not completely clear.
If I were a sitting Congressman I think that I might hesitate before going too far down this road. The courts might find that Congress was acting unconstitutionally by arrogating to itself power that the Constitution does not give to Congress. And that, in turn, might be a felony which is a constitutional basis for the removal of a sitting Congressman.
Such a course of action might redound against the Congress politically as well. Imagine the following the scenario. After removing President Bush (and, presumably, Vice President Cheney) from office for violations relating to the surveillance of terrorism suspects, a terrorist act with mass casualties occurs in the United States. When asked about the attack, the sitting President (whoever that might be) says We could have prevented it if we had done xxxx, but the Congress has tied my hands.
One thing is clear: partisan discord should not be allowed to become a grounds for impeachment whatever water has flowed under the bridge.
UPDATE: There’s a lively conversation on the subject of the wiretaps going on at Winds of Change.